California Court of Appeal Mar 25, 2014 No. D063869Unpublished
Filed 3/25/14 P. v. Parish CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063869
Plaintiff and Respondent,
v. (Super. Ct. No. SCD240397)
STEPHEN MCAVOY PARISH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Cannon & Harris and Gregory L. Cannon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Parag
Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Stephen McAvoy Parish of five counts of robbery (Pen. Code,1
§ 211). Prior to trial, Parish entered guilty pleas to possession of a firearm by a felon
(§ 29800, subd. (a)), possession of ammunition (§ 30305, subd. (a)(1)), and carrying a
concealed firearm in a vehicle (§ 25400, subds. (a)(1) & (c)(1)). Parish also admitted a
strike prior (§ 667, subds. (b)-(i)), a serious felony prior (§ 667, subd. (a)(1)) and two
prison priors (§ 667.5, subd. (b)). Parish was sentenced to a determinate term of 22 years
4 months in prison.
Parish appeals challenging his robbery convictions. He contends the trial court
erred in denying his motion for self-representation made at the close of evidence in the
trial. Parish also contends there is insufficient evidence to support three of the robbery
counts.
We will find the trial court acted well within its discretion in denying Parish's very
late motion for self-representation. Viewing the evidence at trial under the proper
standard of review, we will find there is sufficient substantial evidence to support the
challenged robbery convictions and affirm the judgment.
STATEMENT OF FACTS
A. Count 1: Robbery of AM/PM Store on Murphy Canyon Road
At about 10:30 p.m. on March 10, 2012, Parish entered an AM/PM store. He
asked the clerk for a carton of "Marlboro 100s." The clerk turned around to get the
cigarettes and when he looked back, Parish pointed a gun at him. Parish said "give me all
1 All further statutory references are to the Penal Code unless otherwise specified. 2
the cash." The clerk gave the cash to Parish who took the cash and cigarettes and left.
Parish was wearing a black puffy jacket with a hood over his head.
The clerk later identified a black puffy jacket, which had been later found in
Parish's garage, as the one worn during the robbery. He also identified the plastic gun,
which was recovered during a later robbery, as similar to the one used by Parish. The
jury also viewed the surveillance video with audio taken during the robbery. The clerk
identified Parish as the person who committed the robbery.
B. Count 2: Robbery at ARCO
At around 7:00 p.m. on March 11, 2012, Parish entered an ARCO store on
Mission Gorge Road in San Diego. Parish was wearing a hooded sweatshirt, red hat and
sunglasses. He ask the clerk for a carton of "Marlboro 100s Long" cigarettes. When the
clerk said she did not have cartons of cigarettes Parish tapped a gun on the counter and
told her to "give me all your money." Parish left with the cash from the clerk and also
took a pack of cigarettes. The clerk did not identify Parish at trial, however the jury
viewed the video and audio surveillance. The surveillance photos showed the robber was
wearing a sweatshirt with the logo "Viejas" on it.
C. Count 3: Robbery of AM/PM store on Clairemont Mesa Boulevard
This robbery took place on March 11, 2012 at about 10:05 p.m. Parish entered the
store wearing a dark hooded sweatshirt, red hat and sunglasses. He asked for a carton of
"Marlboro Reds" cigarettes. When the clerk said he did not sell cartons, Parish asked for
two packs of Marlboro Medium 100s. When the clerk obtained the cigarettes Parish
slammed a gun on the counter and demanded the cash from the register.
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The robbery was briefly interrupted when a customer entered to pay for gas.
Parish waited and when the customer left Parish said: "Give me the cash. Give me the
cash. Give me the cash." The clerk gave Parish the cash, who then left with it plus the
two packs of cigarettes.
The clerk did not identify Parish at trial but did identify the Viejas sweatshirt,
which had been taken from Parish at a later robbery, as being the shirt he saw during the
robbery of his store. Once again the jury saw the surveillance video with audio taken
during the robbery.
D. Count 4: Robbery of a United Oil Gas Station
This robbery occurred on March 12, 2012 at about 10:20 p.m. Parish approached
the cashier wearing a dark hooded jacket, hat and sunglasses. He asked the clerk for a
carton of Marlboro cigarettes. As the clerk scanned the carton, Parish said: "Give me all
the money." He had a black gun in his hand. Parish left with the money and the
cigarettes.
The clerk did not identify Parish at trial, however the jury viewed the surveillance
video of the robbery. The robber was wearing a hooded sweatshirt with the logo "Viejas"
on it.
E. Count 5: Robbery of a Shell Gas Station
The final robbery in this case occurred on March 13, 2012 at a Shell gas station on
Clairemont Mesa Boulevard. The clerk noticed Parish at around 9:30 p.m. Because
Parish was dressed in a hooded sweatshirt and had on dark glasses, the clerk was
suspicious. Parish told the clerk he was there to buy iced tea. When the clerk returned to
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the cash register, Parish slammed a gun on the counter and told the clerk it was a robbery
and "now, give me your money."
As Parish reached for the money, the clerk grabbed the gun, and immediately
recognized it was a fake gun. Parish ran out the door toward a burgundy colored
Chrysler with the clerk in pursuit. The clerk grabbed Parish and a struggle ensued.
During the struggle a woman got out of the car, but the clerk told her to get back into the
car. The clerk pinned Parish down, but as the clerk tried to call 911, Parish was able to
escape into the Chrysler and drive away. In the struggle, the clerk ripped the sweatshirt
and sunglasses from Parish. The sweatshirt had the "Viejas" logo on it. The clerk
identified Parish and the jury viewed the surveillance video.
Police investigation following the robberies focused on Parish. Police had
reviewed all of the surveillance videos and noted the similarities of the five robberies.
On April 25, 2012, police contacted Parish and arrested him. They noticed he walked
with a limp similar to the limp displayed by the robber in the surveillance videos. Police
thereafter seized a black puffy jacket from Parish's garage along with a pair of white
sneakers similar to those on the surveillance videos. They also determined that Parish
smoked cigarettes.
DNA samples were taken from the Viejas sweatshirt, plastic gun and sunglasses.
They contained a mixture of DNA samples. Parish could not be excluded from the
jacket. Parish was the major contributor to the samples from the sweatshirt and
sunglasses.
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DISCUSSION
I
DENIAL OF SELF-REPRESENTATION
A. Background
Throughout the trial court proceedings, Parish had frequent disagreements with
appointed counsel. Parish brought three different motions to replace appointed counsel
pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Each was thoroughly
discussed during in camera proceedings and each was denied. Parish does not challenge
the trial court's decisions denying those motions.
Following the denial of his first motion, Parish requested to represent himself.
After lengthy discussion with the trial court, Parish was permitted to discuss self-
representation with his family. Following those discussions, Parish withdrew his request.
After the prosecution rested and the court denied Parish's motion for acquittal
(§ 1118.1), defense counsel stated he did not intend to call witnesses. At that point
another Marsden motion was made. Again the motion was denied. Parish again made a
motion to represent himself. A lengthy discussion followed in which the court explored
the reasons for the late request. It appeared that Parish was in disagreement with
counsel's strategy, particularly with regard to calling alibi witnesses. Counsel represented
he had investigated the witnesses and determined not to call them. Parish disagreed. He
said he wanted to represent himself and call an unspecified number of unnamed
witnesses. The trial court denied his motion as untimely and found it was made for
purposes of delay.
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Parish contends the trial court erred in denying his motion for self-representation.
He contends the motion was timely and even if it was not, the court abused its discretion
in denying the request.
B. Legal Principles
As part of the Sixth Amendment right to counsel, a defendant has a right to self-
representation if the request is timely, unequivocal and made after a knowing and
intelligent waiver of the right to counsel. (Faretta v. California (1975) 422 U.S. 806,
819; People v. Koontz (2002) 27 Cal.4th 1041, 1069.) The right is absolute if made far
enough in advance of trial, with a valid waiver. (People v. Lynch (2010) 50 Cal.4th 693,
721.) Once the defendant goes to trial represented by counsel, subsequent requests for
self-representation are arguably untimely. Where the request is made during trial, the
right to self-representation is no longer absolute. Rather, the decision to grant or deny the
request is within the sound discretion of the trial court. (Id. at pp. 721-722; People v.
Windham (1977) 19 Cal.3d 121, 128.)
We review the trial court's ruling on a late application for self-representation under
the abuse of discretion doctrine. We review the trial court's inquiries and its stated
reasons for its ruling. Even where the court does not fully state its reasons we look to the
record to determine if it supports the trial court's decision. (People v. Dent (2003) 30
Cal.4th 213, 218.)
C. Analysis
The trial court was clearly aware of the struggles between Parish and appointed
counsel. The court denied two Marsden motions before the request at issue here. The
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court had also discussed self-representation with Parish at the start of the trial
proceedings. It is also beyond dispute that the second request for self-representation was
untimely. The trial process was essentially complete with the exception of closing
arguments and instructing the jury. The request grew out of another dispute with trial
counsel over trial strategy. Thus the trial court could well conclude the request was made
out of anger and frustration and not truly a request for self-representation. (People v.
Lewis (2006) 39 Cal.4th 970, 1002.)
Although the trial court did not address specifically what made this last minute
request untimely, it is not hard to deduce why the court made that finding. Taken at face
value, Parish was proposing to start over with the defense. It would seem that no
witnesses had been subpoenaed for trial given defense counsel's statements. The identity
and number of witnesses is unclear and plainly there would have to be a disruption of the
trial for an unknown period of time. It is hard to conceive of the trial court's decision
under these circumstances being an abuse of discretion. As we have noted, this jury trial
was essentially complete save for argument and instruction. Disrupting the trial at this
point would have been entirely inappropriate. Further, this trial judge had spent a great
deal of time dealing with Parish's concerns and given the weight of the evidence against
him, the court could reasonable conclude the purpose of the motion was delay and
possible disruption of the trial. We find no error in denying Parish's Faretta motion.
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II
SUFFICIENCY OF THE EVIDENCE FOR COUNTS 2 THROUGH 4
Parish contends the evidence is not sufficient to support the convictions for counts
2 through 4. His contention is rather straightforward. He contends since the clerks in
counts 2 through 4 could not identify him as the robber, the remaining evidence is not
sufficient to prove he committed those offenses. We disagree and find reasonable jurors
could have been convinced, beyond a reasonable doubt, that the person who committed
the robberies in counts 1 and 5 was the same person who committed the remaining
robberies. Indeed, we agree with the trial court's assessment that the evidence of Parish's
guilt is quite strong.
A. Legal Principles
When we review a challenge to the sufficiency of the evidence in a criminal case,
we apply the very familiar substantial evidence standard of review. Under that standard
we review the entire record in the light most favorable to the trial court's decision. We
draw all reasonable inferences in favor of that decision and we do not weigh the evidence
or make credibility decisions. Our task is to determine whether a reasonable fact finder
could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26
Cal.3d 557, 577-578; Jackson v. Virginia (1979) 443 U.S. 307, 319.) "Where, as here,
the jury's findings rest to some degree upon circumstantial evidence, we must decide
whether the circumstances reasonably justify those findings, 'but our opinion that the
circumstances might reasonably be reconciled with a contrary finding' does not render the
evidence insubstantial." (People v. Earp (1999) 20 Cal.4th 826, 887-888.)
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B. Analysis
We note at the outset there is no contention that the robberies did not occur in this
case. Rather, the sole challenge to counts 2 through 4 is to the identity of the perpetrator.
Our analysis therefore starts with the two principal anchors of identity in this case. There
is no dispute that Parish committed the robberies in counts 1 and 5; nor could there be
any meaningful challenge on this record. What the challenge in this case principally
ignores is the weight of circumstantial evidence regarding the remaining counts.
In the first robbery Parish was positively identified and the black puffy jacket
similar to that which was worn during the robbery was found later in his garage. The
jurors observed the surveillance videos and photos. Like all of the other robberies, the
first was at night, in a convenience store connected with a gas station. The essential
methodology was the same; requesting Marlboro cigarettes followed by producing what
appeared to be the same gun and then demanding cash. Each robbery was by an older
white male, with a beard and a hood over his head. The videos also showed the person
walking with a limp, similar to that of Parish, later observed by police.
In the final robbery attempt, Parish was positively identified and his hooded
sweatshirt and sunglasses were torn from him in his struggle with the clerk. Parish's
DNA samples connected him to the sweatshirt and sunglasses.
The robberies in counts 2 through 4 were all conducted in the same manner, same
general area and similar time frame. Each of the challenged robberies was done in a
fashion strikingly similar to those in counts 1 and 5. Importantly, in the robberies in
counts 2 through 5 the robber was wearing the same dark colored sweatshirt with the
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Viejas logo clearly visible on it. The robber in each count wore a hat and sunglasses, was
an older white male with a beard, and in each instance the robbery was recorded on
surveillance videos.
We are satisfied that the jurors, having viewed the surveillance material and the
almost identical actions taken by the robber in all counts could reasonably conclude that
Parish, positively connected to counts 1 and 5, was also the perpetrator of counts 2
through 4. The evidence at trial fully supports the convictions on all five counts of
robbery.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in denying a defendant's mid-trial motion for self-representation and that there was sufficient evidence to support the robbery convictions.
Issues
Whether the trial court abused its discretion in denying a motion for self-representation made at the close of evidence.
Whether there was sufficient evidence to support the robbery convictions for counts 2 through 4.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court acted well within its discretion in denying Parish's very late motion for self-representation.”
“We will find there is sufficient substantial evidence to support the challenged robbery convictions and affirm the judgment.”
“Disrupting the trial at this point would have been entirely inappropriate.”